To the chagrin of conservatives, ObamaCare ruling is a model of restraint

by Russell's Rants

Originally published June 26, 2015

46f753911dba79449670532283a05d90The federal judiciary is supposed to be the “least dangerous” branch of government owing to its limited powers. It has no standing army or purse strings. Its powers emanate from its great interpretive ability to “say what the law is.”

The Warren Court gained a reputation as being “activist” because, according to critics, it went beyond interpreting the law to creating it out of whole cloth – thus usurping the legislative function.

Judicial restraint can fairly be said to include the Court’s adherence to the Constitution in interpreting rights, deference to Congress in reviewing legislation and respect for the Court’s own prior rulings making precedent.

Chief Justice John Robert’s majority opinion upholding ObamaCare subsidies in King v. Burwell complies with all three of these tenets of judicial restraint – though you wouldn’t know it from his detractors on the right. Roberts read the statute as a whole and interpreted it according to what it was designed by Congress to do: “improve health insurance markets, not to destroy them.” Sounds like what a judicial umpire would, and should, do.

For his efforts, Roberts earned the scorn of Republicans. Presidential candidate Mike Huckabee echoed timeworn conservative complaints, bemoaning “unelected” judges “circumvent[ing] Congress” and “legislat[ing] from the bench.” “[J]udicial tyranny,” he declared on twitter!

No one let Huckabee know that the old clichés of the right during the Warren Era don’t really fit the new conservative jurisprudence.

In his column with the only mildly hyperbolic title, “John Roberts helps overthrow the Constitution,” George F. Will is at least honest about the new conservative complaint against John Roberts. He’s too judicially modest!

George Will bemoans the Court’s “vast deference to the purposes of the political branches.”

“Thursday’s decision demonstrates how easily, indeed inevitably, judicial deference becomes judicial dereliction, with anticonstitutional consequences. . . . The Roberts Doctrine facilitates what has been for a century progressivism’s central objective, the overthrow of the Constitution’s architecture. The separation of powers impedes progressivism by preventing government from wielding uninhibited power.”

When did it become the Supreme Court’s function to stop the government from effectively governing for its own sake?

George Will can’t decide if he’s more upset that Roberts has deferred to the executive or to the legislative branch in cleaning up the inartfully drafted portions of the Affordable Care Act so that they function as designed. He forgets that King v. Burwell presented a simple question of statutory interpretation, not of constitutional powers (that was already decided in favor of the ACA last term).

The right’s real objection is that Roberts is not a conservative activist – in the model of say, Antonin Scalia. Republicans wanted the Supreme Court to do judicially what they failed to do politically — repeal ObamaCare. That is not the job of a modest judiciary in line with its constitutional dictates.